Uma análise do Art. 28 da Lei nº 11.343/2006 sob a ótica do paternalismo jurídico

Abstract

The present article seeks to discuss the pandemic scenario of drugs in Brazil together with the paternalistic action of the State, focusing on Law No. 11,343/2006, specifically on its article 28. In this scenario, the various legislative changes throughout history are notorious, thus requiring an analysis of the historical context of the creation of each Brazilian special legislation focused on drugs, as well as their evolutions. The defense of the legitimacy of the protection of a supraindividual legal good will also be developed, this being a minority current of doctrine. However, the exposition of the arguments alleged by the majority part is not left aside, which also presents foundations that enrich the discussion of the proposed problem. As a result of the expansion of Criminal Law and constitutional mutation, through the study carried out, the concern with the protection of the collectivity became evident, a concern not seen in the past, when it intended only to protect individual interests. Seeks to develop reasoning that demonstrates the need for the determination of conduct considered right and wrong for greater social regulation. In this perspective, the central study is focused on the limitation of individual freedoms, in favor of collective well-being, exposing arguments that rebut such an idea. Considering that the institute of Legal Paternalism is broad and complex, the focus is on the prohibition of drug possession for personal use, the impacts that drug consumption causes on society, and the state legitimacy to intervene in the individual sphere when their conduct is in conflict with the safety of society as a whole. In addition, the limits to individual autonomy considering the necessary interference of the State in the behavior of the citizen, when it comes to conduct harmful to society, will be analyzed. For this purpose, the deductive method is used, with the methodology of bibliographic research. In summary, it will be argued that the individual does not possess full individual freedom, consequently, there is no saying in freedom to carry out conducts that cause harm to third parties